Bary v. Global American Terminals, LLC Background

The Claimant was an employee of the Port of Louisville who sustained employment-related hearing loss. Claimant’s counsel first named the Claimant’s nominal employer as the last responsible employer liable for the Claimant’s hearing loss benefits. The Claimant retired from maritime employment in 2002.

The Claimant obtained an audiogram in 2011 that reflected hearing loss and subsequently filed a LS-203 against the nominal employer. However, after a year of litigation, the Claimant discovered that the assets and liabilities of its nominal employer was sold to a different entity in 2001. The Claimant amended his LS-203 and separately named Claimant’s subsequent employer that purchased those assets and liabilities. Counsel for the subsequent employer controverted the matter and filed its LS-207 in May 2012.

BRB Ruling on Pre-Controversion Attorney’s Fees

Eventually, the substantive claim settled on a disputed basis. The parties reserved on settlement of attorney’s fees. Counsel for the Claimant subsequently submitted a fee petition to both the Department of Labor and the Office of Administrative Law Judges that requested payment for all fees incurred even prior to the involvement of the subsequent employer. The presiding ALJ issued a Decision and Order affirming Claimant’s fee petition in full and awarding all hours submitted.

The subsequent employer appealed to the BRB, arguing that it should not be liable for pre-controversion fees pursuant to Section 28(a). Under Section 28(a), an employer is liable for a claimant’s attorney’s fees if the claim is denied and the claimant “thereafter” uses the services of an attorney who successfully prosecutes the claim. The BRB held that its own precedent clearly mandated an employer is not liable for “pre-controversion” fees under Section 28(a). However, the BRB remanded the matter back to the ALJ in order to determine the exact date that Employer’s liability commenced.

]]>The Benefits Review Board (“BRB”) recently entered a Decision and Order in Dill v. Service Employees International (BRB No. 18-0014, October 11, 2018), affirming the Administrative Law Judge’s (ALJ) award of death benefits under the Defense Base Act (DBA) as an extension of the Longshore & Harbor Workers’ Compensation Act (LHWCA) to a widow whose husband had committed suicide.

DBA Death Benefits Case – Background

At the first formal hearing of Dill v. Service Employees International (BRB No. 18-0014, October 11, 2018), the evidence demonstrated that Decedent committed suicide while stateside subsequent to several deployments in Iraq as a DBA contractor. The record was replete with references to Decedent’s erratic behavior both prior to his DBA employment, on his sporadic visits home from Iraq, and on his final stateside visit home when he committed suicide.

For example, in Decedent’s last return home, he came home to find the locks changed on his house, his wife having an extramarital affair, and his teenage daughter dealing drugs out of his home with her much-older boyfriend.

What was noteworthy about this case was that there were no pre-suicide psychiatric records. Decedent had never seen a mental health professional and there was no pre-mortem psychiatric or psychological diagnosis. Instead, both the widow and the employer had to rely on expert witnesses performing what the ALJ referred to as a “psychiatric autopsy,” where the parties’ experts interviewed Decedent’s widow and Decedent’s daughter about his behavior.

DBA Death Benefits Case – First Decision

The ALJ initially awarded benefits to the widow, which was first appealed to the BRB and remanded to the ALJ for a determination as to whether Claimant met the Section 20(a) presumption. The ALJ determined that Claimant had met the Section 20(a) presumption, found that the employer had rebutted the presumption, but ultimately found a causal connection between Claimant’s behavior and ultimate suicide and his employment.

DBA Death Benefits Case – Second Appeal

The employer again appealed to the BRB. While the matter was pending a second time before the BRB, the Ninth Circuit Court of Appeals issued a landmark opinion addressing the standard for compensability of suicides in DBA claims. The Ninth Circuit held that suicides or injuries from suicide attempts are compensable under the LHWCA (and its extensions such as the DBA) where there is an “unbroken chain of causation between a compensable work-related injury and the suicide attempt. The claimant need not demonstrate that the suicide or attempt stemmed from an irresistible impulse. The chain of causation rule accords with our modern understanding of psychiatry. It also better reflects the Longshore Act’s focus on causation rather than fault.” Kealoha v. Director, OWCP, 713 F.3d 521, 524-25 (9th Cir. 2013).

The BRB remanded back to the ALJ for application of this standard.

DBA Death Benefits Case – Third Decision

The ALJ issued a third Decision and Order finding that there was an unbroken chain of causation between Claimant’s undiagnosed mental condition and his suicide. In analyzing Kealoha, the ALJ looked at general tort principals in order to determine the threshold for where there was to be a break in the chain of causation. For there to be such a break in the chain of causation, the ALJ held that there must be an intervening cause that is independent of employment. The ALJ found that the decedent tumultuous personal life was not enough to break the chain of causation.

The BRB affirmed, finding that the ALJ had substantial evidence in making the finding that there was an unbroken chain of causation between Decedent’s employment in Iraq and his suicide.

]]>A recent decision from the Office of Administrative Law Judges (OALJ) addressed the interplay between Section 10(i) and Section 10(c) of the Longshore & Harbor Workers’ Compensation Act (LHWCA) in calculating the Claimant’s average weekly wage. Section 10(i) is particularly important when dealing with Defense Base Act (DBA) cases where claimants allege psychiatric injuries (PTSD, anxiety, depression) that manifest long after their return from their overseas deployment and after their employment with DBA employers.

In this particular case, the Claimant was employed as a police trainer and firearms instructor. He was deployed to Afghanistan from 2008 through 2011, deployed to Haiti from 2011 to 2013, and then re-deployed to Afghanistan from 2013 to 2015 when his employment terminated in January 2015. During his various deployments in Afghanistan, the Claimant was constantly at risk of injury from rocket and mortar attacks. He was present for two such IED attacks in 2010 and 2014.

In January 2015, the Claimant was part of a firearms training exercise that went wrong and was allegedly forced into resigning his position. His resignation was effective January 24, 2015. At no time did the Claimant ever sustain any physical injuries while deployed.

When the Claimant returned stateside in January 2015, he began experiencing nightmares, began experiencing flashbacks, and began isolating himself from friends and family. The Claimant eventually began treating with his first psychiatrist on February 10, 2015 where he was diagnosed with severe PTSD, severe major depressive disorder, and generalized anxiety disorder.

Determining the Proper Calculation of Claimant’s Average Weekly Wage

One of several issues at the formal hearing was proper calculation of Claimant’s average weekly wage (AWW). The parties stipulated at the formal hearing that the Claimant sustained an occupational disease and not a traumatic injury; as such, the Claimant alleged that his disability did not commence until February 10, 2015. Per the ALJ, because the Claimant’s occupational disease did not immediately result in disability, Section 10(i) applied.

However, the ALJ did not mechanically apply Section 10(i) to establish the Claimant’s date of disability for purposes of calculating AWW. Instead, the ALJ looked to Section 10(c) to determine what amount “reasonably represent[ed] the annual earning capacity of Claimant.” This included Claimant’s work within the war zone, which the ALJ noted was consistent with the Benefits Review Board’s (BRB) prior holdings. The ALJ stated that Section 10(c) also required that the Claimant’s annual earnings be a “reasonable representation of his annual earning capacity.”

Essentially, the ALJ ensured that a mechanical application of Section 10(i) to establish the date of disability for AWW purposes did not violate the spirit of how the BRB and various federal courts of appeals had interpreted Section 10(c). The ALJ held that under Section 10(i), Claimant’s date of disability was February 10, 2015 (the date of his first visit with his psychiatrist) and that his annual earnings were calculated by looking at his war zone wages in the 52 weeks prior to February 10, 2015.

How the ALJ Addressed the Employer’s Arguments

In determining the date of injury under Section 10(i) and the corresponding annual earnings under Section 10(c), the ALJ also addressed the Employer’s various arguments. Of note, the ALJ was unconvinced by the Employer’s position that the Claimant’s earnings should be based exclusively on his stateside employment because there was testimony that the Claimant did not want to return to overseas employment. The ALJ was further unconvinced of the Employer’s argument that the Claimant’s “voluntary resignation” rendered the Claimant’s former employment irrelevant because there was substantial evidence that the Claimant was eligible for rehire.

Patrick is a member of Mouledoux, Bland, Legrand & Brackett’s Longshore and Harbor Workers’ Compensation Act, Defense Base Act and War Hazards Compensation Act defense team. Patrick recently spoke on a panel at the Willis Towers Watson Defense Base Act Symposium on “DFEC Changes & Impacts to the Industry: Update from the DOL and the Industry Defense on the Recent PTSD Changes.”

MBLB is one of a handful of law firms in the nation known for our experience and expertise in litigating claims arising under the Defense Base Act as well as the Longshore and Harbor Workers’ Compensation Act (LHWCA), and War Hazards Compensation Act (WHCA).

Dallas DBA Seminar

The Dallas DBA Seminar 2019: Trends and Trajectories in Defense Base Act Claims is a tool for the defense industry and claims professionals to learn the legal and practical aspects of claims management, maintain active knowledge regarding current case law, and learn about medical and vocational solutions and strategies. Registration will be open to employers, carriers, and their representatives.

The seminar will include panels of industry leaders including risk managers, claims professionals, physicians, legal experts, brokers, and vocational specialists. They will share their experiences and insights and allow for an open discussion with questions from our attendees.

Mugerwa v. Aegis Defense Services – Background

The Claimant, a Ugandan citizen and resident, alleged that he sustained an epigastric hernia due to his employment as a security guard in Afghanistan. He filed a claim under the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, in May of 2016. The Employer denied that the Claimant’s hernia was causally related to his employment.

Requests for Execution of Medical Release Forms

The Employer requested that the Claimant sign two medical release forms following his alleged injury. The Claimant refused and responded to the Employer’s discovery requests with documents that he asserted were the entirety of the relevant medical records. As the Office of Administrative Law Judges has no subpoena power in Uganda, the Employer filed a motion to compel the Claimant to sign the medical releases. The administrative law judge granted the motion.

The Claimant subsequently filed a motion for reconsideration. The administrative law judge issued a supplemental order granting the motion to compel, but imposed temporal limitations on the records the Claimant was required to produce. The Claimant appealed to the Benefits Review Board.

Law and Arguments

The administrative law judge’s supplemental order noted that the federal courts are split on whether judges are able to compel claimants to sign medical release forms. While parties can typically use subpoenas to obtain relevant documents, that was not an option in the instant claim due to Claimant’s residence in a foreign country. Accordingly, the administrative law judge concluded that a compelled medical release was the only means by which Employer could obtain the records at issue.

The Claimant contended that the compulsory execution of medical releases exceeded the permitted methods of discovery and that the administrative law judges lack the authority to compel the execution of medical release forms. The Benefits Review Board noted that administrative law judges have broad discretion to obtain relevant evidence and are not restricted to the discovery tools listed in the Office of Administrative Law Judges Rules.

However, recognizing Claimant’s concern over unfettered access to his medical records, the Benefits Review Board held that administrative law judges “have the authority to compel claimants to sign narrowly tailored medical releases when it is reasonable under the circumstances to do so.”

The Benefits Review Board provided the following instructions upon remand:

“[E]mployer must first establish a reasonable inference of the existence of additional relevant records in light of claimant’s assertion that he has produced all relevant records.” The burden is on the requesting party to produce evidence challenging a claimant’s assertion.

If the claimant has “acted in good faith by producing his relevant medical records and employer has not shown the likely existence, relevance, and necessity of the additional requested medical information, the medical release forms are unnecessary, and the administrative law judge should deny employer’s motion to compel.”

“If, however, the administrative law judge finds that claimant has acted in good faith but employer has shown the relevance and necessity of medical information held by a medical provider, or if employer establishes claimant has not acted in good faith, then the medical releases may be warranted.”

“If they are needed, the administrative law judge must greatly narrow their scope or must order the parties to work together to generate mutually-agreeable medical release forms.”

“If claimant refuses to sign the narrowed medical release forms, then the administrative law judge may grant employer’s motion to compel.”

]]>A recent case, Malta v. Wood Group Production Services, BRB No. 18-0059 (2018), which was argued in front of the Administrative Law Judge (“ALJ”) and Benefits Review Board (“BRB”) a total of three times, upheld an offshore warehouseman’s Workers’ Compensation claim under the Longshore Act.

Malta v. Wood Group Production Services

On April 14, 2012, the Claimant, an offshore warehouseman, was working on a fixed platform in state waters unloading a CO2 bottle from a cargo basket, when the bottle discharged causing him to sustain injuries to his back, left arm, shoulder and foot. The Claimant filed a workers’ compensation claim under the Longshore Act, which was jurisdictionally denied. This case was argued in front of ALJ and Benefits Review Board a total of three times.

Did Injury Occur in a Legal Jurisdiction Covered Under Longshore Act?

The first time, the ALJ denied the Claimant benefits under the Longshore Act, holding that Claimant’s injury did not occur on a situs (the place to which, for purposes of legal jurisdiction or taxation, a property belongs) covered under the Act. The Claimant appealed, and the BRB reversed the decision, holding that the facility where the Claimant worked was a covered situs and remanded the case for consideration of remaining issues.

Was Offshore Warehouseman Engaged in Maritime Employment?

The second time, the ALJ addressed whether the Claimant engaged in “maritime employment” pursuant to the Longshore Act. The parties had stipulated that the initial BRB decision established jurisdiction, but that the Employer reserved the right to controvert benefits due to change of status.

The ALJ adopted the stipulations and ordered the Employer to pay the Claimant benefits, to which the Employer appealed, challenging the finding that the Claimant is a maritime employee. The BRB vacated the administrative law judge’s decision, stating that the parties’ joint stipulation incorrectly interpreted the Board’s decision as finding the Claimant to be an employee covered under the Act.

The BRB remanded the case back to the ALJ as the ALJ did not make specific findings or legal conclusions regarding Claimant’s status as a maritime employee.

Were Claimant’s Duties Related to Maritime Commerce?

The third time, the ALJ found that the Claimant’s duties did constitute maritime employment and ordered the Employer to pay benefits.

The Employer thereafter appealed, asserting that the Claimant’s employment activities of unloading and loading equipment and tools for use in the oilfield are not related to maritime commerce and did not serve a maritime purpose. Further, the Employer contended that Claimant failed to establish an additional independent connection to maritime commerce in order to be covered under the Act.

The BRB affirmed the ALJ’s decision, holding that the Claimant’s activities are considered maritime employment pursuant to the Act. Claimant is entitled to coverage based on his overall employment duties and the employment duties at the moment of injury.

The BRB held that the mere fact that Claimant’s work was in oil and gas is not sufficient to deny coverage and that the Claimant’s duties of unloading and loading supply vessels is a maritime activity. While the majority of the Claimant’s time was spent in activities relating to oil and gas production, the BRB agreed with the ALJ that these activities did not detract from the Claimant’s routine maritime activities, which he was partaking in at the time of injury.

In affirming the ALJ’s decision, the BRB additionally disagreed with the Employer’s contention that the Claimant needed to establish an additional independent connection to maritime commerce. The BRB stated that employees have the burden to establish such when they are not directly involved in the loading or unloading of vessels. Here, the Claimant worked directly with unloading and loading the vessels and thus the Claimant did not need to prove same, regardless of the use of the cargo. Based on the foregoing, the BRB affirmed the award of benefits.

]]>Collateral Source Rule Applies to Louisiana Workers’ Compensation Insurance Payments—or Does It?https://mblb.com/lhwca-dba-whca/collateral-source-rule-applies-to-louisiana-workers-compensation-insurance-payments-or-does-it/
Fri, 28 Sep 2018 21:28:42 +0000https://mblb.com/?p=9736In a personal injury case, the collateral-source rule bars a tortfeasor, a defendant, from reducing his liability by the amount the plaintiff recovers from independent sources. It is a substantive rule of law, as well as an evidentiary rule (disallowing evidence of insurance or other collateral payments that may influence a fact finder). In its … More»

]]>In a personal injury case, the collateral-source rule bars a tortfeasor, a defendant, from reducing his liability by the amount the plaintiff recovers from independent sources. It is a substantive rule of law, as well as an evidentiary rule (disallowing evidence of insurance or other collateral payments that may influence a fact finder). In its simplest form, the rule asks whether the tortfeasor contributed to, or was otherwise responsible for, a particular income source. If not, the income is considered independent of (or collateral to) the tortfeasor, and the tortfeasor may not reduce its damages by that amount.

In practice, the rule allows plaintiffs to recover expenses they did not personally have to pay. Without the rule, however, a third-party income source would create a windfall for the tortfeasor.

How Louisiana Has Handled the Collateral Source Rule in Respect to Workers’ Compensation Payments

Two primary considerations guide a Louisiana court’s determination with respect to the collateral source rule: (1) whether application of the rule will further the major policy goal of tort deterrence; and (2) whether the victim, by having a collateral source available as a source of recovery, either paid for such benefit (i.e. through their medical insurance or by workers’ compensation) or suffered some diminution in his patrimony (inheritance) because of the availability of the benefit, such that no actual windfall or double recovery would result from application of the rule.

In the context of workers’ compensation payments, the Louisiana Third Circuit in 2017 upheld a trial court’s denial of the defendant’s motion in limine, which sought credit for medical bills paid by the injured plaintiff’s workers’ compensation insurer. The Third Circuit explained that the collateral source rule applies to a tortfeasor even if consideration — in the form of policy payments — is nonexistent.

However, in a more recent decision the Third Circuit found no abuse of discretion in a trial court’s grant of a defendant’s motion in limine, which prohibited the introduction at trial of the actual amount of plaintiff’s medical bills and instead only allowed the presentation of total medical bills paid by the injured plaintiff’s workers’ compensation insurer. In a 2-1 decision denying the plaintiff’s supervisory review, the dissenting judge stated that the application of the collateral source rule furthers the policy goal of tort deterrence and would reverse the trial court’s ruling. See Simmons v. Cornerstone Investments, LLC, et al., 2017-1077 (La. App. 3 Cir. 4/5/18).

The Louisiana Supreme Court has now granted plaintiff’s application for supervisory review. It will be interesting to see how the Supreme Court handles the application of the collateral source rule in the context of workers’ compensation payments.

How the Collateral Source Rule Is Handled Under Federal Law

It is noted that in regard to federal law, where medical expenses are paid through workers’ compensation coverage provided by the employer pursuant to Longshore and Harbor Workers’ Compensation Act (LHWCA), an injured plaintiff may not recover from a third-party tortfeasor for the full amount of medical expenses billed but not paid. See Deperrodil v. Bozovic Marine Inc., 842 F.3d 352 (5 Cir. 2016).

Background – Claimant Filed a Claim for Total Disability Benefits under LHWCA

Claimant filed a claim for benefits under the Longshore & Harbor Workers’ Compensation Act for permanent and total disability benefits for back and chest injuries that he sustained while working for his Longshore employer. Following a formal hearing, the Administrative Law Judge (ALJ) awarded Claimant a closed period of Temporary Total Disability (TTD) benefits for the chest injury but denied benefits for an alleged lower back injury. Claimant appealed the ALJ’s award, which the Benefits Review Board (BRB) affirmed. Claimant then filed its Petition for Review with the Fifth Circuit Court of Appeals.

Concurrently, Claimant had filed a third-party tort action against various third-party defendants. While the Claimant’s BRB appeal was pending, Employer learned that Claimant had settled a portion of the third-party tort action as to one of the third-party defendants. The amount of settlement greatly exceeded the award of the ALJ. Although Claimant notified counsel for Employer that a mediation was being conducted to attempt settlement in the third-party claim, Claimant neither provided notice of the settlement to the Employer, nor obtained express written consent of the settlement to the Employer. Employer then moved to have the Fifth Circuit appeal dismissed pursuant to Section 33 of the LHWCA.

In analyzing Section 33 of the LHWCA, the Fifth Circuit emphasized that Section 33(g) required that an employee obtain written approval of certain third-party settlements and to provide notice of all third-party settlements and judgments. The purpose of Section 33 was designed to ensure that the employer’s rights are protected and to prevent a claimant from unilaterally bargaining its way to funds to which an employer may be entitled. Per the Fifth Circuit, the notice requirement enables employers to protects its right of set-off against its future obligations and prevents double recovery on the part of the claimant.

Fifth Circuit Ruling

The Fifth Circuit held that Claimant’s right to compensation and benefits should be terminated under the plain language of the statute and under the U.S. Supreme Court precedent. See Estate of Cowart v. Nicklos Drilling, 505 U.S. 469 (1992). Further, the Fifth Circuit cited to a dearth of BRB precedent holding that if an employee settled for an amount greater than the total liability of the employer and fails to give notice, then the employee suffers termination of benefits. In this case, Claimant’s telephonic notice of mediation was “clearly inadequate” notice of an actual settlement. The Fifth Circuit dismissed Claimant’s Petition for Review.

]]>Department of Labor Assesses National Average Weekly Wage for Fiscal Year 2019https://mblb.com/lhwca-dba-whca/dol-assesses-national-average-weekly-wage-for-2019/
Thu, 20 Sep 2018 14:00:29 +0000https://mblb.com/?p=9722Based on data compiled by the Bureau of Labor Statistics, the Department of Labor (DOL) has made a final determination of the national average weekly wage as defined under the Longshore & Harbor Workers’ Compensation Act. This determination affects the minimum and maximum compensation rates required to be paid by employers for injuries sustained under … More»

]]>Based on data compiled by the Bureau of Labor Statistics, the Department of Labor (DOL) has made a final determination of the national average weekly wage as defined under the Longshore & Harbor Workers’ Compensation Act. This determination affects the minimum and maximum compensation rates required to be paid by employers for injuries sustained under the Act.

]]>Member Patrick Babin and Andrew Blauert of Labor Management Services, Inc., will co-host an educational webinar on Thursday, November 15, 2018 from 11:00 AM – 12:30 PM PST to discuss an important and developing topic in Longshore and DBA claims: delayed onset occupational diseases, including PTSD.

This webinar will cover the interplay between Sections 10, 12, and 13 of the Longshore and Harbor Workers’ Compensation Act. They will discuss the statute regarding reporting an occupational disease claim (after date of awareness) and arguments for the calculation of average weekly wage.

Patrick is a member of Mouledoux, Bland, Legrand & Brackett’s LHWCA, Defense Base Act & War Hazards Compensation Act defense team. MBLB is one of a handful of law firms in the nation known for our experience and expertise in litigating claims arising under these acts. Patrick will also be speaking on a panel at the Willis Towers Watson Defense Base Act Symposium on October 4. His topic is “DFEC Changes & Impacts to the Industry: Update from the DOL and the Industry Defense on the Recent PTSD Changes.”

About Labor Management Services, Inc.

Labor Management Services, Inc. is a specialized provider of top quality IME and vocational rehabilitation services. They serve a variety of types of clients from leading insurance carriers and TPAs to self-insured employers and defense attorneys. They actively serve all state and federal jurisdictions. As a specialized national IME company, they combine personalized service and expert knowledge with nationwide coverage to provide consistent quality and timely reports across the board.

Register for the Longshore and Dba Webinar

CEU credits for Texas and Florida will be provided. Registration for the webinar is complimentary.